Quebec's secularism law threatens religious and equality rights, Supreme Court hears

“If ever there were a mini-Trump in Canada, as in many other Western countries right now, the only hope would rest in the confidence that we can have in the good faith of politicians, because everything happening in the United States could happen here, in a perfectly constitutional way, using the ‘notwithstanding’ provisions.”

On day one of a pivotal four-day court challenge of the controversial Quebec law known as Bill 21, minority rights and civil liberties activists watched the country’s top judges wrestle with a critical question: how far can politicians go to shield laws from judicial review and just how far should the courts go to curb those powers when the law appears to breach basic constitutional rights.

The answer — which may be months away — comes down to how the judges interpret the Constitution’s Section 33, the so-called “notwithstanding clause,” which gives legislators the power to override the Charter of Rights and Freedoms to enact statutes that might otherwise not pass muster, and whether that clause shuts down any debate from the get-go.

That central question was one that lawyers challenging the Quebec government’s ban on certain public servants wearing hijabs, turbans, kippahs or other visible religious symbols first danced around. 

They urged the top court to recognize the “fundamental” nature of the 1982 Constitution Act’s guarantees of gender equality and minority language education rights, saying those guarantees cannot be overridden in a bid to enforce “state neutrality,” even if a popular majority wishes to do so.

The override power of the notwithstanding clause was part of the “constitutional bargain” that led nine of 10 provinces to agree to the patriation of Canada’s Constitution with its new Charter of Rights and Freedoms in 1982, but several lawyers Monday argued it doesn’t give legislators a blank check to trample rights. 

They said courts retain the power to scrutinize a law and to declare when it goes too far, even if elected lawmakers seek to avoid such a declaration, as the Coalition Avenir Quebec government did in 2019 in its secularism act.

Lawyer David Grossman, acting for an appellant Ichrak Nourel Hak, a Muslim woman of Moroccan origin, argued along with the National Council of Canadian Muslims and the Canadian Civil Liberties Association that the Bill 21 challenge has broad constitutional implications.

“The backdrop of this case is religious symbols, but the true issue is the limit on legislative power on one hand and judicial power on the other,” he said.

A skeptical Justice Malcolm Rowe, among four others on the seven-judge panel, challenged the appellants’ lawyers repeatedly. Rowe suggested the court’s hands are tied, and asked whether it was “end of story” once duly elected legislators invoke the override power.

Rowe said elected assemblies are at the very foundation of the Constitution, and that there are no criteria by which the courts should even attempt to nullify the Section 33 fence around dubious laws. He dismissed suggestions Quebec overreached into federal criminal law-making powers an attempt to legislate “morality.”

When Berard warned it is a slippery slope, pointing to the trampling of minority rights throughout the West, Rowe asked, “Should the Constitution be interpreted in light of the person who is the president of the United States, or the president of Russia, or the leader of the Communist Party in China? Is that our methodology?” 

Berard said it would be a mistake for the court to decide “in a vacuum, as if Canada were sheltered from everything that’s happening around the Western world.

“Will Canada have its Donald Trump moment? I don’t know, I hope not,” he said, but added the trend is accelerating. 

In Alberta, Berard added sarcastically, the override clause is now “practically being used as a ‘yes or no’. In Ontario as well. The right to strike is being removed, unionized workers are being refused this fundamental right to strike. Why? Well, because the notwithstanding clause permits it, and it’s very popular to tell union workers, ‘Forget about your right to strike, forget about your protests.’”

He acknowledged the chief justice’s observation that no federal Parliament has ever invoked the constitutional escape clause. “However,” he said, “the leader of the Official Opposition is promising to do so.” (Conservative Leader Pierre Poilievre has said he would shield tougher bail laws with Section 33.)

Rowe said, “It seems in your presentation it’s a fight for power between the courts and elected officials. Is it really as simple as that?”

“It’s not a fight for power, with all due respect,” Berard replied. “It’s a fight to ground Canada, it’s a fight for what we decided were the intrinsic values in Canada.”

Oral arguments by Quebec’s attorney general in defence of the bill will be heard Tuesday. A record number of interveners, including the federal government and many provincial attorneys-general and other groups, are scheduled for brief arguments later in the week. A final decision may not come for several more months, as is custom in such complex cases at the top court.